Joinder and Severance - what the heck?

Hello Friends, it’s been a minute, but I don’t like to jam your inbox unless there’s something to talk about, and the case has been pretty quiet lately. However, there are a few new developments to talk about today.

First, we understand that a sealed decision and order may have been filed in Lori’s case. It’s a rumor at this point because the state of Idaho’s website has been down since yesterday, and it’s unclear what that order means. We know there was a sealed report filed from the Idaho Department of Health and Welfare a couple of weeks ago. The new document could be either a finding that she is competent or that she isn’t. It seems that a competency finding would be more public, so I’m leaning toward a finding that she still is not competent, but with all these sealed documents, it’s anyone’s guess.

There is a hearing on March 8, 2022, to consider Chad’s motion to sever the trials. The state filed an objection to Chad’s motion and a legal memo supporting their position. Here is how I think about joinder and severance: joinder is about convenience, severance is about fairness.

This is the Idaho rule on Joinder:

Idaho Criminal Rule 8. Joinder of Offenses and of Defendants

(a) Joinder of Offenses. Two or more offenses may be charged on the same complaint, indictment or information if the offenses charged, whether felonies or misdemeanors or both, are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan. The complaint, indictment or information must state a separate count for each offense.

(b) Joinder of Defendants. Two or more defendants may be charged on the same complaint, indictment or information if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses. The defendants may be charged in one or more counts together or separately and all of the defendants need not be charged in each count.

Rule 8(b) is the section relevant to our discussion. It’s clear that the defendants were charged on the same complaint, and under this rule, they should be tried together, UNLESS the situation falls under the exception listed in Rule 14.

Idaho Criminal Rule 14. Relief from Prejudicial Joinder

If it appears that a defendant or the state is prejudiced by a joinder of offenses or of defendants in a complaint, indictment or information, the court may order the state to elect between counts, grant separate trials of counts, grant a severance of defendants, or provide whatever other relief justice requires. In ruling on a motion by a defendant for severance the court may order the attorney for the state to deliver to the court for inspection in camera any statements or confessions made by the defendants that the state intends to introduce in evidence at the trial.

The prosecution, in this case, moved to join the defendants and the trials. Lori’s former counsel, Mark Means, objected to the joinder without any legal basis (as he frequently did). Chad’s attorney, John Prior, who does understand the law, did not object because the situation clearly falls within the joinder statute; the court granted the motion.

Here is the thing, an objection to joinder is not the same as a motion to sever. Objecting to joinder means you believe the defendants did not participate in the same transaction or series of transactions and therefore don’t qualify for joinder. Joinder is about consistency, efficiency, and resources. It’s about only using court time once, only taking testimony from a witness once, only getting rulings on evidence once.

Severance, on the other hand, is about fairness and prejudice. Let’s say a piece of evidence is admissible in the trial as it applies to Chad but would be inadmissible as it applies to Lori. It’s impossible to present the evidence to the jury and then tell them to disregard it in their deliberations on Lori’s charges. More subtly, the very nature of the charges could prejudice Chad if the trials are conducted together. We all know that there is an ingrained social bias against mothers who participate in the murder of their own children. For most of us, it’s an act that is even more reprehensible than when the murder of a child is committed by anyone else. So the very fact of Lori sitting at the same defense table as Chad colors the jury’s view of both of them and could prejudice Chad.

Since severance is very much a constitutional issue, we can get some guidance from federal law. The federal courts say this about severance.:

“There is a preference in the federal system for joint trials of defendants who are indicted together.” Zafiro v. United States, 506 U.S. 534, 537 (1993). Federal Rule of Criminal Procedure 14(a) allows for severance of properly joined defendants if “the joinder. . .appears to prejudice a defendant.” A defendant seeking severance must show that “joinder is so manifestly prejudicial that it outweighs the dominant concern with judicial economy and compels the exercise of the court’s discretion to sever.” United States v. Brashier, 548 F.2d 1315, 1323 (9th Cir. 1976).

Finally, we know Judge Boyce is a cautious judge. For that reason, it’s likely much of the upcoming hearing on March 8, 2022, will be sealed. The reason for that is that the attorneys will have to discuss specific evidence that will be brought up at trial. Doing so in a public hearing could further taint the jury pool. There is also some precedent in Idaho. In 2006, Brian Draper and Torey Adamcik were charged with the murder of their high school classmate, Cassie Stoddart. There was a great deal of publicity surrounding the case, and the 16-year-olds were tried as adults. The court granted a motion to sever their trials.

In general, the likelihood is greater that a case will be overturned on appeal because the court failed to sever the trial.

On another subject, I appear live on YouTube on Friday evenings with Lauren Matthias of Hidden True Crime https://www.youtube.com/c/HiddenTrueCrime. We are on this evening at 7 pm. Grab a beverage of your choice and join us for a chat. We have been diving deep into the case during the quiet weeks. Be on the lookout for a deep dive into all things Zulema Pastenes soon.

Justice for Tylee and JJ wristbands are still available. Send your self-addressed stamped envelope to:

Lori Hellis
1042 N. Higley Rd., #102-446
Mesa, AZ 85205